# Cross Burning Ban Upheld by SCOTUS **URL:** \ **Category:** Great Debates\ **Created:** [April 7, 2003, 7:09pm UTC](https://boards.straightdope.com/t/cross-burning-ban-upheld-by-scotus/167136 "2003-04-07T19:09:20Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![middleman](https://avatars.discourse-cdn.com/v4/letter/m/e9a140/32.png) [@middleman](https://boards.straightdope.com/u/middleman)\ **Post date:** [April 7, 2003, 7:09pm UTC](https://boards.straightdope.com/t/cross-burning-ban-upheld-by-scotus/167136/1 "2003-04-07T19:09:20Z")
[CNN ARTICLE](http://www.cnn.com/2003/LAW/04/07/scotus.cross.burning.ap/index.html) Excerpts: > [@](#): > > A burning cross is an instrument of terror, and government should have the power to stamp out or punish its use, Justice Sandra Day O’Connor wrote. > > The protections afforded by the First Amendment … are not absolute," O’Connor wrote for herself and four other justices. … > [@](#): > > O’Connor was joined by Chief Justice William H. Rehnquist and Justices John Paul Stevens, Antonin Scalia and Stephen Breyer What an odd majority. That means there was a minority of Kennedy, Souter, Thomas and Ginsburg. This is one of those great cases where “party” ideology doesn’t put you down on one side of the decision or the other. I wish more peoplesaw cases like this so that they would have faith in the SCOTUS. Not all decisions are 5-4 “straight” party decisions. Even if you disagree with this particular 5-4 ruling, you can’t say it is the work of political hacks. As for the ruling itself, I have a bit of a problem with treating the two cases the same. Sure it should be illegal to burn a cross in someone’s yard (that is a crime even if you are burning an old shoe or something), but the prohibition from burning it on private land strikes me as too over reaching. As long as the expressive speech doesn’t expressly incite violence, should the SCOTUS define meaning, however obnoxious the cause? Is the incitement of violence the only symbolic meaning of cross burning? Couldn’t it be a symbol to unite racists in common cause? Is this a case of not tolerant intolerance? ---
**Author:** ![Some\_Guy](https://avatars.discourse-cdn.com/v4/letter/s/439d5e/32.png) [@Some\_Guy](https://boards.straightdope.com/u/Some_Guy)\ **Post date:** [April 7, 2003, 7:27pm UTC](https://boards.straightdope.com/t/cross-burning-ban-upheld-by-scotus/167136/2 "2003-04-07T19:27:25Z")
Interesting. I didn’t know that Justice Thomas was capable of disagreeing with Justice Scalia. As far as the issue at hand goes, I’m a staunce libertarian, so it should strike nobody as odd that I find it erroneous. Burning your own cross on your own land with your own fuel terrorizes nobody in particular. That doesn’t make it a particularly nice thing to do, but the standard should not be niceness. Certainly the standard should not be whether one can work the word “terror” into one’s decision somehow. That’s the bit that peeves me. ---
**Author:** ![Dr.Lao](https://avatars.discourse-cdn.com/v4/letter/d/2bfe46/32.png) [@Dr.Lao](https://boards.straightdope.com/u/Dr.Lao)\ **Post date:** [April 7, 2003, 7:40pm UTC](https://boards.straightdope.com/t/cross-burning-ban-upheld-by-scotus/167136/3 "2003-04-07T19:40:00Z")
> [@](#): > > \*Originally posted by Some Guy \* > \*\*Interesting. I didn’t know that Justice Thomas was capable of disagreeing with Justice Scalia. \*\* I was thinking the same thing. And if you told me that they were going to disagree on the burning cross ban, I certainly would’ve assumed that Thomas would be the one voting for the ban. ---
**Author:** ![middleman](https://avatars.discourse-cdn.com/v4/letter/m/e9a140/32.png) [@middleman](https://boards.straightdope.com/u/middleman)\ **Post date:** [April 7, 2003, 7:50pm UTC](https://boards.straightdope.com/t/cross-burning-ban-upheld-by-scotus/167136/4 "2003-04-07T19:50:06Z")
Especially since Scalia voted in the majority in the FLAG burning case (which are really apples and oranges!) I looked at the case on the SCOTUS website and it was a little more complicated that the article made it out to be. I haven’t had time to read the full text, but the crux is that Va. has a law that you can’t use cross burning to intimidate. No problems there. The problem is that the law says that ANY flag burning will create a prima facia case that the offending party did so with the purpose to intimidate. Also, the private land case was a big field next to the highway and the speaker was yelling, “I wish I had me a 30/30 to shoot some blacks!” It muddies the water a bit. (I too was shocked that Thomas and Scalia were on the opposite sides. Aren’t they together 90%+? More shocking was that Thomas spoke at orals.) ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [April 7, 2003, 7:54pm UTC](https://boards.straightdope.com/t/cross-burning-ban-upheld-by-scotus/167136/5 "2003-04-07T19:54:20Z")
> [@](#): > > \*Originally posted by Dr. Lao \* > \*\*I was thinking the same thing. And if you told me that they were going to disagree on the burning cross ban, I certainly would’ve assumed that Thomas would be the one voting for the ban. \*\* Is the case up on Findlaw yet? I couldn’t find it. Reading the article, it sounds more like Thomas wrote a concurrence rather than a dissent. I’ll have to see how exactly he voted. As for the decision, I’m disappointed. Generalized intimidation is a core part of political speech, unfortunately. What this ruling does (based only on the article) is find that some forms of intimidation are acceptable and some are not. And that’s a problem. Sua ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 7, 2003, 8:02pm UTC](https://boards.straightdope.com/t/cross-burning-ban-upheld-by-scotus/167136/6 "2003-04-07T20:02:18Z")
It’s silly. Outlaw cross buring and the KKK will find something else to burn, like giant circles. Then you outlaw circle burning and they move on to triangles. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [April 7, 2003, 8:02pm UTC](https://boards.straightdope.com/t/cross-burning-ban-upheld-by-scotus/167136/7 "2003-04-07T20:02:58Z")
> [@](#): > > \*Originally posted by SuaSponte \* > \*\*Generalized intimidation is a core part of political speech, unfortunately. > Sua \*\* Could you elaborate on this? I’ve no doubt that you’re right, but I’ve never heard the term “generalized intimidation” before, much less heard that it was okay; in fact, I thought that the Southern Poverty Law Center sued the pants off the KKK because of their advocacy of violence against black people in general. Daniel ---
**Author:** ![Dr.Lao](https://avatars.discourse-cdn.com/v4/letter/d/2bfe46/32.png) [@Dr.Lao](https://boards.straightdope.com/u/Dr.Lao)\ **Post date:** [April 7, 2003, 8:03pm UTC](https://boards.straightdope.com/t/cross-burning-ban-upheld-by-scotus/167136/8 "2003-04-07T20:03:44Z")
The article is written very confusingly. Most of Thomas’s quotes seem to be in agreement with the majority, except for this paraphrase, "Thomas said in apparent exasperation that a government lawyer was providing only tepid, legalistic justification for the Virginia law. " ---
**Author:** ![Rug\_Burn](https://avatars.discourse-cdn.com/v4/letter/r/a87d85/32.png) [@Rug\_Burn](https://boards.straightdope.com/u/Rug_Burn)\ **Post date:** [April 7, 2003, 8:06pm UTC](https://boards.straightdope.com/t/cross-burning-ban-upheld-by-scotus/167136/9 "2003-04-07T20:06:04Z")
So having KKK demonstrators on public property doesn’t intimidate, or incite violence; but burning a cross on private property does? 😕 ---
**Author:** ![sqweels](https://avatars.discourse-cdn.com/v4/letter/s/f19dbf/32.png) [@sqweels](https://boards.straightdope.com/u/sqweels)\ **Post date:** [April 7, 2003, 8:30pm UTC](https://boards.straightdope.com/t/cross-burning-ban-upheld-by-scotus/167136/10 "2003-04-07T20:30:08Z")
Question: Do cross burning cases like this ever really “intimidate” anyone anymore, or do they have the opposite effect of provoking outrage, defiance, and lawsuits? ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [April 7, 2003, 8:38pm UTC](https://boards.straightdope.com/t/cross-burning-ban-upheld-by-scotus/167136/11 "2003-04-07T20:38:29Z")
Does this mean that Skokie, Ill. could pass a law preventing the Nazis from displaying a swastika when they march through there, so long as the law is couched in terms that the symbol is meant to intimidate? I mean, when you march through a Jewish community with a big-assed swastika banner, you’re not exactly asking the residents out to tea. Can we now pass a flag-burning law so long as it is burned “with intent to intimidate?” Some guy wearing a shirt saying “9/11 was just the beginning” burns a flag – could that be prosecuted under such a law? ---
**Author:** ![UrbanChic](https://avatars.discourse-cdn.com/v4/letter/u/9dc877/32.png) [@UrbanChic](https://boards.straightdope.com/u/UrbanChic)\ **Post date:** [April 7, 2003, 8:50pm UTC](https://boards.straightdope.com/t/cross-burning-ban-upheld-by-scotus/167136/12 "2003-04-07T20:50:48Z")
Would this case have gone through the fourth circuit court of appeals? ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [April 7, 2003, 8:54pm UTC](https://boards.straightdope.com/t/cross-burning-ban-upheld-by-scotus/167136/13 "2003-04-07T20:54:28Z")
> [@](#): > > \*Originally posted by watsonwil \* > [BWhat an odd majority. That means there was a minority of Kennedy, Souter, Thomas and Ginsburg. \*\* My impression from another article was that Thomas wrote his own supporting opinion. He was even more in favor of banning cross burning than the majority was. ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [April 7, 2003, 8:56pm UTC](https://boards.straightdope.com/t/cross-burning-ban-upheld-by-scotus/167136/14 "2003-04-07T20:56:08Z")
**Daniel,** Quite frankly, a political ad that says, “Vote for me because the other guy will cause a recession and you will lose your job and house,” is a form of intimidation. I know people will say that there is a difference in kind between that and cross-burning, but I contend that there is only a (very large) difference in degree. Sua ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [April 7, 2003, 9:03pm UTC](https://boards.straightdope.com/t/cross-burning-ban-upheld-by-scotus/167136/15 "2003-04-07T21:03:26Z")
Well, I would see it as a degree of difference if it said, “Vote for me because if you don’t, I’ll do all sorts of illegal stuff to cause a recession.” My (admittedly non-lawyerly) understanding of the burning-cross’s intimidation is that it’s 1. Symbolizing that the cross-burner is going to do harm to some folks, and 2. They’re going to commit that harm via illegal acts. If I put on an ad threatening you with harm if you don’t vote with me, but I don’t threaten to be the one harming you, and/or I don’t threaten to harm you via illegal acts, it seems my intimidation is different in both kind and degree from a crossburner’s intimidation. Daniel ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [April 7, 2003, 9:09pm UTC](https://boards.straightdope.com/t/cross-burning-ban-upheld-by-scotus/167136/16 "2003-04-07T21:09:15Z")
> [@](#): > > One of the defendants was convicted of burning a cross on a consenting owner’s relatively secluded property, at what was essentially a Klan rally. The Court said that such speech could be protected, unless the government shows that the speech was intended to threaten people. The Court rejected the Virginia statute’s presumption that cross-burning was intended to threaten – and this probably means that most cross-burning at such rallies will indeed be held to be protected speech unless there’s some evidence that it was meant to convey a fairly specific message of threat to particular people, rather than just conveying a general message of hatred and menace. In that respect, the Court more or less struck down this part of the cross-burning ban, rather than upholding it. > > ## The other two defendants were convicted of burning a cross on a particular black person’s property. This is clearly a fairly personal threat, but the defendants claimed that while the threat might be punishable using a general threat statute, it was unconstitutionally content-discriminatory (and maybe even viewpoint-discriminatory) for Virginia to single out threatening cross-burning for special punishment. The Court held that this singling out of cross-burning was constitutional, not because cross-burning is racist, but because cross-burning conveys a message that is likely to be especially threatening (given the history of cross-burning’s association with violence). It’s possible that these two defendants might still get off the hook, depending on how the Virginia Supreme Court interprets the presumption in the anti-cross-burning statute. But in general, these sorts of defendants who burn crosses to convey fairly individualized threats can now be punished under specific anti-cross-burning laws, though defendants who burn crosses to convey a generalized message of hatred and menace probably cannot be punished. > > [Eric Muller, 12:40 PM] > WHY THOMAS’S OPINION IS A DISSENT: > There were two pieces to the Virginia statute that the Court reviewed. One of them made it illegal “for any person … with the intent of intimidating any person or group … to burn … a cross on the property of another.” The other said that “any such burning … shall be prima facie evidence of an intent to intimdate a person or group.” > > A majority of the court (Thomas included) agreed that the first piece did not violate the First Amendment. A plurality (not including Thomas) were of the view that the second piece did violate the First Amendment (because they see cross-burning as proscribable only because of the certainty that it is deeply threatening activity, and the “prima facie” evidence provision pretty much removes that important factor from the jury’s attention). Justices Thomas and Scalia were of the view that this second piece did not violate the First Amendment, and they therefore would have voted to uphold the statute in its entirety, at least on its face. That’s why Thomas’s position is a dissenting position. [http://volokh.blogspot.com/](http://volokh.blogspot.com/) As I recall, this result was supported by several Dopers on this panel. Generalized threats are free speech; specific threats to individuals can be banned. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 7, 2003, 9:35pm UTC](https://boards.straightdope.com/t/cross-burning-ban-upheld-by-scotus/167136/17 "2003-04-07T21:35:18Z")
That makes thing a lot clearer. Clearly it can’t be legal to burn a cross (or anything else) on someone else’s property (i.e., w/o their consent). Is it felt that a mere “vandalism” statute is too light? I’m not sure what the penalty might be (w/o the law in question here) for this type of behavior. ---
**Author:** ![Robb](https://avatars.discourse-cdn.com/v4/letter/r/a183cd/32.png) [@Robb](https://boards.straightdope.com/u/Robb)\ **Post date:** [April 7, 2003, 10:04pm UTC](https://boards.straightdope.com/t/cross-burning-ban-upheld-by-scotus/167136/18 "2003-04-07T22:04:49Z")
[Virginia v. Black](http://www.supremecourtus.gov/opinions/02pdf/01-1107.pdf) is on the Supreme Court page as a .pdf file. The syllabus lists the voting as follows: > [@](#): > > O’Connor, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III, in which REHNQUIST, C. J., and STEVENS, SCALIA, and BREYER, JJ., joined, and an opinion with respect to Parts IV and V, in which REHNQUIST, C. J, and STEVENS and BREYER, JJ., joined. STEVENS, J., filed a concurring opin-ion. SCALIA, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which THOMAS, J., joined as to Parts I and II. SOUTER, J., filed an opinion concurring in the judgment in part and dissenting in part, in which KENNEDY and GINSBURG, JJ., joined. THOMAS, J., filed a dissenting opinion. ---
**Author:** ![middleman](https://avatars.discourse-cdn.com/v4/letter/m/e9a140/32.png) [@middleman](https://boards.straightdope.com/u/middleman)\ **Post date:** [April 7, 2003, 10:09pm UTC](https://boards.straightdope.com/t/cross-burning-ban-upheld-by-scotus/167136/19 "2003-04-07T22:09:31Z")
Yeah. It was one of those multi-part, shifting majority decisions. Daniel said, > [@](#): > > Well, I would see it as a degree of difference if it said, “Vote for me because if you don’t, I’ll do all sorts of illegal stuff to cause a recession.” > > My (admittedly non-lawyerly) understanding of the burning-cross’s intimidation is that it’s > > 1. Symbolizing that the cross-burner is going to do harm to some folks, and > 2. They’re going to commit that harm via illegal acts. That is what the court and the Va. Legislature seemed to suggest. But the question is: aren’t we putting words in people’s mouth? Aren’t we defining what THEIR expressive thought means? I tend to agree that anyone who burns a cross is probably doing it to intimidate, but as with all other things criminal, I think the burden should be on the state to establish a prima facie case of intimidation. ---
**Author:** ![middleman](https://avatars.discourse-cdn.com/v4/letter/m/e9a140/32.png) [@middleman](https://boards.straightdope.com/u/middleman)\ **Post date:** [April 7, 2003, 10:18pm UTC](https://boards.straightdope.com/t/cross-burning-ban-upheld-by-scotus/167136/20 "2003-04-07T22:18:36Z")
Oops. I missed Decembers summary. So what exactly was the status of the prima facia section? Ah Crap. I gotta go read this case in full tonight. I thought I was done with “homework”! 🙂 LESSON: This is what happens when you do your legal research through CNN instead of Westlaw or Lexis! :smack: [Next page](https://boards.straightdope.com/t/cross-burning-ban-upheld-by-scotus/167136.md?page=2)